Saturday, September 19, 2015
E. Lea Johnston (University of Florida - Levin College of Law) has posted Communication and Competence for Self-Representation (Fordham Law Review, Vol. 84, 2016 Forthcoming) on SSRN. Here is the abstract:
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards to deny self-representation on grounds of stuttering, strong foreign accent, and low level of education, even when defendants have intact decision-making abilities.
However, the extent to which the Sixth Amendment permits denial of self-representation on the basis of inadequate communication skills is dubious.